The opinion
Benson, J.
(dissenting) : If there is room for a reasonable inference from the evidence that the brakeman believed that the men, although running apparently away from the train, nevertheless intended to turn toward it the moment he ceased to pursue them, baffle his efforts and board it before it was sufficiently under way to prevent, a question was presented for the jury. It might be considered that the men would be daring and foolhardy to do this, but such risks are sometimes taken as reports of frequent accidents show. *484 The brakeman was unquestionably in the line of duty when he approached and ordered the men away, and that his pursuit for some distance might be found to be in the scope of his employment will be conceded. How far the pursuit might be continued before it would become impossible to believe that it was still in the scope of his service can not be precisely fixed by any rule of law but must depend on the circumstances of the case. True it might be so far that no candid person would say that it was still within the range of employment or in furtherance of duty. In the twilight zone, where different inferences might be fairly drawn and opposing conclusions reasonably reached, the domain of the jury is supreme. Beyond that the courts should decide the issue, that is, where there is no room for an honest and reasonable divergence of views.
This proposition was stated in O’Banion v. Railway Co., 65 Kan. 352, 358 , 69 Pac. 353 :
“The intent and purpose with which acts are done can be better ascertained by a jury composed of persons drawn from different vocations in life than by a body of professional men all engaged in one calling. Mr. Thompson, in his Commentaries on the Law of Negligence, says:
“ ‘It is obviously a question of fact for the determination of a jury whether, at the time of the particular act or omission by the servant, which caused the injury, the plaintiff’s servant was acting within the scope of his employment, or acting outside of it to effect some'purpose of his own. (Vol. 1, §615.)’” (p. 358.)
In a ■ case where it was contended that the court should hold as a matter of law that contributory negligence was shown, it was said that:
“Before the case could be taken from the jury on the ground of contributory negligence, it should be established beyond cavil or dispute, leaving no room for differences of opinion upon the question.” (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 518 , 43 Pac. 1136 .)
*485 The federal supreme court, in considering this proposition, said:
“It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts comes in question rather than where deductions or inferences are to be made from the facts." (Railroad Company v. Stout, 84 U. S. 657, 668 .)
In this case the men were still within the fences inclosing the right of way and but forty-two feet from the train; they were young and vigorous and appeared eager and defiant. They had already beaten their way from Lebanon, and it might reasonably be inferred that. they intended, if possible, to continue on their journey.
After a careful consideration of the facts presented in the record it should be held that they admitted of different inferences and opposing conclusions, and hence presented a question of fact for the jury.
Justices Mason and West concur in this dissent.